Court of Appeals upholds dismissal of appeal

FIRST DIVISION
[G.R. No. 166239. June 8, 2006.]
ELSIE ANG , petitioner, vs . DR. ERNIEFEL GRAGEDA , respondent.
DECISION
CALLEJO , SR ., J : p
Before the Court is a Petition for Review of the Resolution 1 of the Court of Appeals
in (CA) CA-G.R. SP No. 76339 dismissing the petition for certiorari led by petitioner, and
its resolution denying the motion for reconsideration thereof.
The Antecedents
On February 9, 1996, Janet Ang had liposuction surgery on her thighs at the EPG
Cosmetic and Aesthetics Surgery Clinic in Alabang, Muntinlupa City. She was attended to
and operated on by Dr. Erniefel Grageda, who owned and ran the said clinic. In the course
of the operation, Janet began to have ts of seizure. The doctor tried to stop the seizures
but Janet had a grandmal seizure that led to her death. Medico-legal experts of the
National Bureau of Investigation listed the cause of death as "irreversible shock."
Ang Ho Chem, Janet's father, led a criminal complaint against respondent. On June
10, 1996, the O ce of the City Prosecutor of Muntinlupa led an Information 2 against
Grageda for reckless imprudence resulting to homicide before the Metropolitan Trial Court
(MeTC) of Muntinlupa City. The accusatory portion of the Information reads:
That on or about the 4th (sic) day of February, 1996, 3 in the City of
Muntinlupa, Philippines and within the jurisdiction of this Honorable Court, the
above-named accused, being then a doctor of EPG Cosmetics and Aesthetics
Surgical Clinic, without taking the necessary care and precaution to avoid injury to
person, did then and there, unlawfully and feloniously conducted a liposuction
operation on the person of Janet Ang in a careless, negligent and imprudent
manner without employing the necessary corrective and/or preventive measures
to prevent and/or arrest the irreversible shock, which directly caused her death.
The case was ra ed to Branch 80 of the MeTC of Muntinlupa and docketed as

Criminal Case No. 21815.
After trial on the merits, the MeTC rendered judgment on March 4, 2002, acquitting
accused Grageda. 4 The lower court ruled that the accused complied with the minimum
standards followed by physicians in the treatment of their patients; that liposuction of the
thighs is a minor surgery, hence, the clinical setting of accused was acceptable; that in
trying to save the life of Janet Ang, accused followed the standard procedure in the
conduct of the same; that all the elements of the crime of reckless imprudence are not
present in the case; that accused was not negligent; and that the liposuction surgery was
not the proximate cause of the death of Janet Ang. The dispositive part of the decision
states:
WHEREFORE, premises considered, the Court nds accused Dr. Erniefel
CD Technologies Asia, Inc. © 2019 cdasiaonline.com
Grageda NOT GUILTY of the crime of reckless imprudence resulting to homicide.
AcaEDC
SO ORDERED.
Private complainant appealed the decision on the civil aspect thereof to the
Regional Trial Court (RTC), Branch 276, Muntinlupa City. The case was docketed as
Criminal Case No. 02-397. 5
On April 30, 2002, the RTC directed the private complainant (now appellant) to le
the necessary appeal memorandum/brief within 15 days from notice. 6 Appellant received
his copy of the order on May 8, 2002.
However, appellant, through counsel, the Solis & Medina Law O ces, failed to le
the required memorandum within the speci ed period. Appellant led no less than 15
motions for extension of time to le said memorandum dated as follows: May 22, 2002, 7
June 5, 2002, 8 June 21, 2002, 9 July 4, 2002, 1 0 July 18, 2002, 1 1 August 2, 2002, 1 2 August
16, 2002, 1 3 August 27, 2002, 1 4 September 6, 2002, 1 5 September 16, 2002, 1 6 October 1,
2002, 1 7 October 16, 2002, 1 8 October 30, 2002, 1 9 November 15, 2002, 2 0 and November
28, 2002. 2 1 In his last motion, appellant prayed that he be given up to December 15, 2002
within which to finalize and file his appeal memorandum.
On December 2, 2002, the RTC issued an Order 22 dismissing the appeal for failure
of appellant to file his appeal memorandum.
Still unaware that the appeal had been dismissed by the court, accused-appellee
led a Motion to Dismiss the Appeal 2 3 on December 10, 2002, on the ground of
appellant's failure to comply with the order of the court. On December 16, 2002, appellant
received a copy of the December 2, 2002 Order of the RTC dismissing his appeal, and
nally led his appeal memorandum/brief 2 4 by registered mail as well as a motion for
reconsideration 2 5 of the December 2, 2002 RTC Order.
On January 20, 2003, the RTC issued an Order 26 denying appellant's motion for
reconsideration. The court ratiocinated that:
Considering that at the time the Order dismissing the appeal was issued,
appellant still had not yet led the appeal memorandum/brief, despite being
granted several extension[s] of time to so le, to a total of 155 days. In fact, the
memorandum was led only on the same date the Motion for Reconsideration
was led. The Court did not nd su cient reason to reconsider her Order and
hereby DENIES the same.
On March 4, 2003, counsel for appellant led a Manifestation 2 7 informing the RTC
of the appellant's death and named the latter's daughter, Elsie Ang, as his substitute and
representative in accordance with Section 16, Rule 3 of the Revised Rules of Court.
Instead of appealing the December 2, 2002 Order of the RTC via a petition for review
under Rule 42 of the Rules of Court within the period therefor, Elsie Ang (petitioner) led a
Petition for Certiorari 2 8 on April 4, 2003 before the CA, questioning the December 2, 2002
and January 20, 2003 Orders of the RTC. Petitioner raised the following arguments in
support of her petition:
1. RESPONDENT COURT GRAVELY ABUSED ITS DISCRETION WHEN
IT ISSUED THE ASSAILED ORDERS DISMISSING THE APPEAL AND DENYING
THE MOTION FOR RECONSIDERATION DESPITE THE FACT THAT THE APPEAL
MEMORANDUM/BRIEF WAS SEASONABLY FILED AND THE EXTENSIONS WERE
NECESSARY AND JUSTIFIED IN VIEW OF THE IMPORTANCE OF THE APPEAL;
2. RESPONDENT COURT GRAVELY ABUSED ITS DISCRETION IN

DISREGARDING APPELLANT-PETITIONER'S STATUTORY RIGHT TO APPEAL,
AND THE NUMEROUS PRONOUNCEMENTS OF THE SUPREME COURT
ADMONISHING APPELLATE COURTS TO REVIEW A DECISION ON THE MERITS
RATHER THAN ABORTING THE RIGHT TO APPEAL BY A LITERAL APPLICATION
OF PROCEDURAL RULES;
3. RESPONDENT COURT GRAVELY ERRED IN RELYING ON

TECHNICAL RULES WHICH IT OUGHT TO HAVE SET ASIDE ON THE PRINCIPLE
THAT WHERE THE RIGID APPLICATION OF THE RULES WOULD FRUSTRATE
SUBSTANTIAL JUSTICE OR BAR THE VINDICATION OF A LEGITIMATE
GRIEVANCE, THE COURTS ARE JUSTIFIED IN EXEMPTING A PARTICULAR CASE
FROM THE OPERATION OF THE RULES; and,
4. IT WAS INDEED GRAVE ERROR FOR THE RESPONDENT COURT TO

DISMISS THE APPEAL AND DISALLOW THE FILING OF THE APPEAL
MEMORANDUM/BRIEF DESPITE ITS APPARENT MERITS . . . 2 9
On May 15, 2003, the CA issued a Resolution 3 0 dismissing the petition for being the
wrong remedy to question the RTC Orders. The CA reasoned that petitioner should have
led a petition for review under Rule 42 of the Rules of Court within the reglementary
period, instead of a petition for certiorari which was led beyond the original 15-day
period. The CA emphasized that certiorari cannot take the place of a lost appeal. DACaTI
Petitioner led a motion for reconsideration 3 1 of the resolution, arguing that there
was no appeal from an order dismissing or disallowing an appeal, hence, the proper
remedy is a petition for certiorari. In his Comment 3 2 led on July 9, 2003, respondent
argued that, under the Rules of Court, a party desiring to question a decision of the RTC
rendered in the exercise of its appellate jurisdiction should le a petition for review under
Rule 42 of the Rules of Court before the CA, and not a certiorari petition under Rule 65.
In the Reply 3 3 led on August 1, 2003, petitioner contended that the RTC gravely
abused its discretion; hence, certiorari was the proper remedy. Petitioner, likewise, invoked
liberality in the application of the Rules of Court. Respondent, in the August 11, 2003
Rejoinder, 3 4 posited that the RTC did not abuse its discretion and that certiorari cannot
take the place of a lost appeal. In her Sur-Rejoinder 3 5 led on September 17, 2003,
petitioner maintained that her appeal memorandum/brief was, indeed, led on December
16, 2002 within the extension period sought, thus, petitioner did not fail in ling the same.
She insisted that the dismissal of her appeal was a nullity.
Finding no reversible error in its previous dismissal order, the CA, on December 10,
2004, denied petitioner's motion for reconsideration. 3 6
The Present Petition
On January 31, 2005, petitioner led the instant petition for review on certiorari,
contending that:
I
THE COURT OF APPEALS ERRED IN DISMISSING THE PETITION FOR
CERTIORARI UNDER RULE 65 FILED BY HEREIN PETITIONER FOR ALLEGEDLY
BEING A WRONG REMEDY:
A. The Regional Trial Court acted with grave abuse of discretion in
dismissing the appeal even before the lapse of the extended period within
which to (sic) herein petitioner's Appeal Memorandum/Brief.
B. There was no appeal nor any plain, speedy, and adequate remedy in
the ordinary course of law.
II
ASSUMING FOR THE SAKE OF PURE ARGUMENT THAT THE PETITION

FOR CERTIORARI UNDER RULE 65 WAS NOT THE PROPER LEGAL REMEDY, THE
SUBSTANTIAL AND OBVIOUS MERITS OF THE APPEAL AND THE IMPORTANCE
OF THE MATTERS AND/OR ISSUES DISCUSSED THEREIN WARRANT THE
ADJUDICATION OF THE SAID APPEAL ON THE MERITS:
A. The Trial Court totally disregarded the testimonies of competent

witnesses and medical experts including the voluminous documentary
exhibits presented by the prosecution when it reproduced in toto the
Memorandum of the private respondent in issuing its decision in Criminal
Case No. 21815.
B. Liposuction of the thighs is not a minor, trivial or simple procedure

contrary to what Dr. Grageda portrays it to be. Since liposuction of the
thighs is not a minor surgical procedure, the standards of care are more
rigid. The evidence showed that Grageda did not observe or did not adhere
to these standards.
C. Dr. Grageda is not even a surgeon who is quali ed to perform

liposuction operation which is a form of plastic surgery.
D. When the victim Janet Ang went into seizures, the appellee Dr.
Grageda did not observe the proper standards of care in managing the said
seizures; as shown by the evidence, the efforts which Dr. Grageda exerted
were inadequate, manifesting the lack of foresight or due care expected of
a surgeon. AEHTIC
E. When the victim Janet Ang went into cardiac arrest, the appellee Dr.
Grageda did not observe the proper standards of care in managing the
cardiac arrest in accordance with known treatises or medical authorities on
the subject. Dr. Grageda's clinic was ill-equipped both in terms of vital
medical equipment needed and of competent personnel assistance; and
F. Dr. Grageda did not observe the appropriate standards for pre-
operative care; his pre-operative examination of the victim lacked
thoroughness, nay inadequate and peremptorily administered. 3 7
The issues raised by the parties in their pleadings are the following: (1) whether the
RTC erred in dismissing the appeal of petitioner; and (2) whether the ling of a petition for
certiorari under Rule 65 of the Rules of Court was the proper remedy of petitioner in the
appellate court.
On the rst issue, petitioner points out that she led her appeal memorandum within
the extended period therefor; for this reason, the Order of the RTC dismissing her appeal
allegedly for failure to le the memorandum is null and void, depriving her of her right to
due process. Moreover, she had no appeal or any plain, speedy, and adequate remedy in
the ordinary course of law; hence, her petition for a writ of certiorari under Rule 65 of the
Rules of Court is appropriate.
Petitioner insists that the trial court did not issue any orders denying her several
motions for extension to le her appeal memorandum; neither did respondent oppose her
motions. Respondent did not suffer any injury by the tardy ling of her appeal
memorandum. It was thus unjust and arbitrary for the RTC to dismiss her appeal.
Petitioner maintains that, in any event, she led her appeal memorandum within the
period prayed for by her in her last motion for extension. Since the RTC had already
acquired jurisdiction over her appeal, it erred in dismissing her appeal on its belief that she
failed to le her appeal memorandum on time. Petitioner cites the ruling of this Court in
Development Bank of the Philippines v. Court of Appeals 3 8 to buttress her contentions.
Petitioner posits that even assuming her petition for certiorari was not the proper
remedy, a relaxation of the rule is warranted, in view of the substantive issues raised in her
petition.
On the merits of her appeal in the RTC, petitioner assails the decision of the trial
court as anomalous and collusive with respondent because the trial court merely
reproduced the Memorandum of respondent in its decision. Liposuction of the thighs is
not a trivial or simple procedure, but is, at the very least, classi ed as a minor surgery. As
shown by the evidence on record, respondent did not observe the proper standards of
care when the victim suffered seizures. His efforts were inadequate, manifesting lack of
foresight or due care expected of a surgeon. Even when the victim had cardiac arrest,
respondent did not observe the proper standards of care in managing the cardiac arrest in
accordance with known treatises or medical authorities. His clinic is ill-equipped both in
terms of vital medical equipment needed and competent personnel or assistant. Petitioner
insists that the trial court erred in failing to render judgment for damages and attorney's
fees against respondent.
By way of comment, respondent avers that the RTC did not commit any error when it
dismissed the appeal of petitioner for her failure to le her appeal memorandum despite
no less than fteen (15) motions for extensions of 155 days to le the same. In any event,
the remedy of petitioner was to le a petition for review to the CA under Rule 42 of the
Rules of Court, not a petition for certiorari under Rule 65. By failing to le said petition for
review within the period therefor, petitioner lost her right to appeal. Respondent points out
that a petition for certiorari cannot be used as substitute for a lost appeal.
By way of reply, petitioner avers that as held by this Court in Sanchez v. Court of
Appeals, 3 9 certiorari may be entertained despite the existence of appeal in accordance
with the dictates of public welfare, the advancement of public policy, and the broader
interest of justice, or where the orders complained of are found to be completely null and
void. Petitioner posits that the Rules of Court should be interpreted so as to give litigants
ample opportunity to prove their respective claims, and that a possible denial of
substantial justice due to legal technicalities should be avoided. TCcSDE
The Court's Ruling

The petition is not meritorious.
On the rst issue, we declare that the December 2, 2002 Order of the RTC
dismissing petitioner's appeal for her failure to le her memorandum despite her
successive motions for extension of time to do so was a nal order . The remedy of
petitioner from said Order of the RTC, as well as the January 20, 2003 Order denying her
motion for reconsideration, was to appeal by ling a petition for review in the CA under
Rule 42 of the Rules of Court. It bears stressing that when the RTC issued the
aforementioned Order, it did so in the exercise of its appellate jurisdiction. Thus, the
remedy of petitioner was to appeal the order under Rule 42, which reads:
Section 1. How appeal taken; time for ling . — A party desiring to
appeal from a decision of the Regional Trial Court rendered in the exercise of its
appellate jurisdiction may le a veri ed petition for review with the Court of
Appeals, paying at the same time to the clerk of said court the corresponding
docket and other lawful fees, depositing the amount of P500.00 for costs, and
furnishing the Regional Trial Court and the adverse party with a copy of the
petition. The petition shall be led and served within fteen (15) days from notice
of the decision sought to be reviewed or of the denial of petitioner's motion for
new trial or reconsideration led in due time after judgment. Upon proper motion
and the payment of the full amount of the docket and other lawful fees and the
deposit for costs before the expiration of the reglementary period, the Court of
Appeals may grant an additional period of fteen (15) days only within which to
le the petition for review. No further extension shall be granted except for the
most compelling reason and in no case to exceed fifteen (15) days.
This rule is based on Section 22 of Batas Pambansa Blg. 129 which explicitly states:
SEC. 22. Appellate Jurisdiction. — Regional Trial Courts shall exercise
appellate jurisdiction over all cases decided by Metropolitan Trial Courts,
Municipal Trial Courts, and Municipal Circuit Trial Courts in their respective
territorial jurisdictions. Such cases shall be decided on the basis of the entire
record of the proceedings had in the court of origin, such memoranda and/or
briefs as may be submitted by the parties or required by the Regional Trial Courts.
The decision of the Regional Trial Courts in such cases shall be appealable by
petition for review to the Court of Appeals which may give it due course only when
the petition shows prima facie that the lower court has committed an error of fact
or law that will warrant a reversal or modi cation of the decision or judgment
sought to be reviewed.
Perfection of an appeal within the statutory or reglementary period is not only

mandatory but also jurisdictional; failure to do so renders the questioned decision/ nal
order nal and executory, and deprives the appellate court of jurisdiction to alter the
judgment or nal order, much less to entertain the appeal. 4 0 When the RTC issued its
December 2, 2002 and January 20, 2003 Orders, the court was exercising its appellate
jurisdiction over the judgment rendered by the MeTC of Muntinlupa City. To reiterate, the
December 2, 2002 Order of the RTC denying the appeal of petitioner was a nal order,
appealable to the CA via petition for review under Rule 42 of the Rules of Court within the
15-day reglementary period thereof.
Petitioner received the December 2, 2002 Order of the RTC on December 16, 2002.
She then led a motion for reconsideration on December 23, 2002. She received the
January 20, 2003 Order of the RTC denying the motion for reconsideration on February 7,
2003. As the 15th day fell on a Saturday, petitioner had up to February 24, 2003 to le a
petition for review before the CA. However, she allowed the reglementary period to lapse
without ling a petition for review in the CA. Thus, the Order of the RTC dismissing
petitioner's appeal had become nal and executory, beyond the competence of the CA to
reverse, much less modify. DEHaAS

Apparently to resuscitate her lost appeal, petitioner led, on April 4, 2003, a petition
for certiorari under Rule 65 of the Rules of Court, alleging that the RTC committed a grave
abuse of its discretion in issuing its December 2, 2002 and January 20, 2003 Orders. She
likewise insisted that she led her Memorandum well within the extension prayed for by
her in her November 29, 2002 motion for extension. The CA, however, saw through her
scheme and dismissed her petition, and in so doing acted in accord with case law. Indeed,
certiorari is an extraordinary remedy. It is not and should not be a substitute for lost
appeal. 4 1 It is not a procedural devise to deprive the winning party of the fruits of the
judgment in his or her favor. Courts should frown upon any scheme to prolong litigations.
A judgment which has acquired finality becomes immutable and unalterable, hence, may no
longer be modi ed in any respect except only to correct clerical errors or mistakes. Once a
judgment or order becomes nal, all the issues between the parties are deemed resolved
and laid to rest. 4 2
The RTC cannot be faulted for dismissing petitioner's appeal on account of her
failure to le her appeal memorandum despite the lapse of the reglementary period
therefor. Under Section 7, Rule 46 of the 1997 Rules of Civil Procedure, the failure of
petitioner, as appellant, to le a memorandum within fteen (15) days from notice from
the clerk of court is a ground for the dismissal of an appeal. The Rule reads:
Sec. 7. Procedure in the Regional Trial Court. —
(a) Upon receipt of the complete record or the record on appeal, the
clerk of court of the Regional Trial Court shall notify the parties of such fact.
(b) Within fteen (15) days from such notice, it shall be the duty of the
appellant to submit a memorandum which shall briefly discuss the errors imputed
to the lower court, a copy of which shall be furnished by him to the adverse party.
Within fteen (15) days from receipt of the appellant's memorandum, the
appellee may le his memorandum. Failure of the appellant to le a
memorandum shall be a ground for dismissal of the appeal.
(c) Upon the ling of the memorandum of the appellee, or the
expiration of the period to do so, the case shall be considered submitted for
decision. The Regional Trial Court shall decide the case on the basis of the entire
record of the proceedings had in the court of origin and such memoranda as are
filed.
The records show that, on April 30, 2002, the RTC issued an Order 4 3 directing
petitioner, as appellant, to le her Memorandum within fteen days from notice thereof,
with a warning that her failure to le her brief will be a ground for the dismissal of her
appeal. Petitioner received a copy of said Order on May 8, 2002 and had until May 23,
2002 within which to le her Memorandum. Petitioner moved for an extension to le her
pleading, until June 7, 2002, on the ground that Atty. Ronald Solis, the lawyer handling the
case, was in the United States on a personal matter. Atty. Solis had returned to the
Philippines but still failed to le the pleading. Petitioner again prayed for an extension of
fteen days or until June 22, 2002 for her to le said memorandum, and again, she failed.
She sought another extension of fteen days, until July 5, 2002, to nalize her draft, but
once again failed to le her memorandum. She thereafter led successive motions for
extension based on her representation that her Memorandum was in the nal stages of
preparation:

DUE DATE GROUND FOR EXTENSION
July 5, 2002 2. The draft of the said Appeal

Memorandum/Brief is in the final
stages of preparation. Initially,
undersigned counsel had the impression
that the extension of time he sought for
earlier would be sufficient for the
purposes of finalizing and filing the
said pleading. However, it did not turn
out to be so in view of the fact that
undersigned counsel is currently under
heavy burden of work consisting of
preparation of pleadings due in cases of
equal import, and almost daily court
appearances and conferences. 4 4
July 18, 2002 1. Due today, July 18, 2002 is the appellant's
Appeal Memorandum/Brief.
2. In fact, the same was supposed to be
finalized for filing except that heavy rains
and flooding in the last two (2) weeks had
considerably slowed down work in the law
offices, thereby creating backlogs not only
with respect to the present case but also on
other legal assignments of the
undersigned. 4 5
August 2, 2002 1. Due today, August 2, 2002 is the appellant's
2. The brief is in the process of final
preparation. Undersigned is just
incorporating applicable new jurisprudence
on quasi-delictual liability and double
checking his factual narrations based on the
voluminous transcript of stenographic
notes. 4 6
August 17, 2002 1. Due tomorrow, August 17, 2002 is the
appellant's Appeal Memorandum/Brief.
2. Much as the same [is] in the process of
finalization and filing, the undersigned
counsel was not able to do so because he
was absent for work for the last ten (10) days
due to flu and viral infection. He was only
able to report back for work today. He
undertakes to submit the appropriate medical
certificate as soon as it available. 4 7
August 27, 2002 1. Due today, August 27, 2002 is the appellant's
2. The Brief is in the final stages of preparation
and due to heavy volume of professional
work counsel is constrained to ask for at
least ten (10) more days to finalize and file
the same. 4 8
September 6, 2002 1. Due today, September 6, 2002 is the
least ten (10) more days to finalize and file
the same. 4 9
September 16, 2002 1. Due today, September 16, 2002 is the
least fifteen (15) more days to finalize and
file the same. 5 0
October 1, 2002 1. Due today, October 1, 2002 is the appellant's
file the same. 5 1
October 16, 2002 1. Due today, October 16, 2002 is the
file the same. 5 2
October 31, 2002 1. Due tomorrow, October 31, 2002 is the
file the same. 5 3
November 15, 2002 1. Due today, November 15, 2002 is the
file the same. 5 4
November 30, 2002 1. Due on November 30, 2002 is the appellant's
file the same. 5 5
However, the counsel of petitioner failed to submit any medical certi cate as
promised by him. Petitioner incessantly represented to the court that her Memorandum
had been in the " nal stages" of preparation since July 5, 2002, and repeatedly assured the
RTC in her motions for extension that she needed ten (10) more days to nalize and le her
memorandum. Yet, she led her memorandum only on December 16, 2002 or almost
seven (7) months after the lapse of the 15-day reglementary period for her to le her
memorandum, and only after the RTC had already issued its Order on December 2, 2002
dismissing the appeal.
It bears stressing that the grant or denial of motions for extension, including the
duration thereof, lies within the sound discretion of the court, to be exercised in
accordance with the particulars of each case. Moreover, the movant is not justi ed in
presuming that the extension sought will be granted, or that it will be granted for the length
of time sought. Thus, it is the duty of the movant of extension to exercise due diligence and
file her pleading within the extension granted by the court. 5 6
Under Rule 12.03 of the Code of Professional Responsibility, a lawyer should not,
after obtaining extensions of time to le pleadings, memoranda, or briefs, let the period
lapse without submitting the same and making an explanation for failing to do so. A lawyer
is obliged to serve his client with competence and diligence and defend the latter's cause
with wholehearted delity, care, and dedication. A lawyer's delity to the cases of his client
requires him to be ever mindful of the responsibilities that should be expected of him. He
is mandated to exert his best effort to protect, within the bounds of the law, the interest of
his client. He should never neglect a legal matter entrusted to him.
In this case, Atty. Solis, despite having been granted several extensions to le the
memorandum for petitioner, assumed that his motions for extension led on November
29, 2002 would be granted by the court and that he had until December 10, 2002 within
which to le the same. He then failed to ascertain from the records of the court whether
his motion had been acted upon. He must have known that in the event that the court
would grant the November 29, 2002 motion for extension, he would only have until
December 10, 2002 within which to le the Memorandum. He waited until after December
16, 2002 to le the required pleading; by then, the RTC had had enough of petitioner's
successive motions for extension and issued the order dismissing the appeal. DEacIT
Petitioner's counsel should not have readily assumed that his November 29, 2002
motion for extension (the last motion led) had been granted by the court, for, as it had
been, the court denied the same through the December 2, 2002 dismissal order.
Petitioner's counsel should have been wary that he was ling the 15th motion for
extension, containing substantially the same reasons as his former motions, and that the
court had already given him a latitude of more than 200 days to le his appeal
memorandum/brief. It was thus already imperative on the part of the appellate court to
dismiss the appeal for non- ling of the required memorandum/brief. If at all, the dismissal
of the appeal can only be attributed to counsel's negligence. Petitioner's counsel ignored
his client's case by ling with the lower court a series of unmeritorious motions for
extension of time, and again by allowing the reglementary period to le a petition for
review under Rule 42 to lapse before the CA.
That respondent did not oppose the motions of petitioner is of de minimis

importance. Petitioner cannot use respondent's silence as basis for her unbridled neglect
to le her memorandum. The administration of justice should not be delayed or derailed at
the whims and caprices of the parties.
Petitioner, further, deliberately included in the instant petition a discussion of the
merits of his case, possibly to convince this Court to excuse her counsel's procedural
lapses. We are not, however, persuaded. Granting that we, indeed, spare petitioner's blind
disregard of the Rules, we still cannot possibly review the factual ndings of the lower
court, as we are not a trier of facts; a petition for review under Rule 45 allows only
questions of law to be raised. Thus, the lower court's factual ndings that respondent was
not negligent and that the liposuction surgery was not the proximate cause of the death of
Janet Ang, stand. This being so, such ndings defeat any claim for civil liability arising from
the offense. As we discussed in Caiña v. People: 5 7
It is noted by the Court that in the dispositive portion of the decision of the
Municipal Trial Court, the accused' (petitioner in this case) acquittal was based on
the ground that his guilt was not proved beyond reasonable doubt making it
possible for Dolores Perez to prove and recover damages. (See Article 29, Civil
Code) However, from a reading of the decision of the Municipal Trial Court, there
is a clear showing that the act from which civil liability might arise does not exist.
Civil liability is then extinguished. (See Padilla vs. Court of Appeals, 129 SCRA
558, 570 [1984]). 5 8
IN VIEW OF ALL THE FOREGOING, the instant petition is DISMISSED for lack of
merit. Costs against petitioner.
SO ORDERED.
Panganiban, C.J., Austria-Martinez and Chico-Nazario, JJ., concur.
Ynares-Santiago, J., is on leave.
Footnotes
1. Penned by Associate Justice Eloy R. Bello, Jr. (now retired), with Presiding Justice
Cancio C. Garcia (now Associate Justice of this Court) and Associate Justice Mariano C.
Del Castillo, concurring; rollo, pp. 89-90.
2. Rollo, p. 96.
3. This appears to be a typographical error in the Information. As indicated in the MeTC
Decision and in all the pleadings of the parties, the date of the liposuction surgery is
February 9, 1996, not February 4.
4. Rollo, p. 103-122.
5. Id. at 123.
6. Id. at 126.
7. Id. at 127.
8. Id. at 129.
9. Id. at 131.
10. Id. at 134.
11. Id. at 137.
12. Id. at 139.
13. Id. at 142.
14. Id. at 145.
15. Id. at 148.
16. Id. at 151.
17. Id. at 154.
18. Id. at 157.
19. Id. at 160.
20. Id. at 163.
21. Id. at 166.
22. Id. at 232.
23. Id. at 330-332.
24. Id. at 169.
25. Id. at 233.
26. Id. at 249.
27. Id. at 250.
28. Id. at 253.
29. Id. at 269-270.
30. Id. at 89.
31. Id. at 76.
32. CA rollo, p. 353.
33. Id. at 357.

34. Id. at 366.
35. Id. at 374.
36. Rollo, p. 75.
37. Id. at 11-12.
38. 411 Phil. 121 (2001).
39. 345 Phil. 155 (1997).

40. Republic of the Philippines v. Court of Appeals, 372 Phil. 259, 266 (1999).
41. Conejos v. Court of Appeals, 435 Phil. 849, 855 (2002); Del Mar v. Court of Appeals, 429
Phil. 19, 30 (2002).
42. Salva v. Court of Appeals, 364 Phil. 281, 294 (1999).

43. Rollo, p. 126.
44. Id. at 134.
45. Id. at 137.
46. Id. at 139.
47. Id. at 142.
48. Id. at 145.
49. Id. at 148.
50. Id. at 151.
51. Id. at 154.
52. Id. at 157.
53. Id. at 160.
54. Id. at 163.
55. Id. at 166.
56. Supra note 37, at 134.
57. G.R. No. 78777, September 2, 1992, 213 SCRA 309.
58. Id. at 315.

Court of Appeals upholds dismissal of appeal

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Court of Appeals upholds dismissal of appeal

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FIRST DIVISION

[G.R. No. 166239. June 8, 2006.]

ELSIE ANG , petitioner, vs . DR. ERNIEFEL GRAGEDA , respondent.

The case was ra ed to Branch 80 of the MeTC of Muntinlupa and docketed as

2. RESPONDENT COURT GRAVELY ABUSED ITS DISCRETION IN

3. RESPONDENT COURT GRAVELY ERRED IN RELYING ON

4. IT WAS INDEED GRAVE ERROR FOR THE RESPONDENT COURT TO

ASSUMING FOR THE SAKE OF PURE ARGUMENT THAT THE PETITION

A. The Trial Court totally disregarded the testimonies of competent

B. Liposuction of the thighs is not a minor, trivial or simple procedure

C. Dr. Grageda is not even a surgeon who is quali ed to perform

The Court's Ruling

Perfection of an appeal within the statutory or reglementary period is not only

CD Technologies Asia, Inc. © 2019 cdasiaonline.com

CD Technologies Asia, Inc. © 2019 cdasiaonline.com

July 5, 2002 2. The draft of the said Appeal

That respondent did not oppose the motions of petitioner is of de minimis

33. Id. at 357.

39. 345 Phil. 155 (1997).

CD Technologies Asia, Inc. © 2019 cdasiaonline.com

58. Id. at 315.

CD Technologies Asia, Inc. © 2019 cdasiaonline.com

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